In a legal opinion issued December 2017, the Trump administration abruptly reversed decades of government policy and practice—by both Democratic and Republican administrations—on the implementation and enforcement of the MBTA.

The Act's prohibition on the killing or "taking" of migratory birds has long been understood to extend to incidental take from industrial activities—meaning unintentional but predictable and avoidable killing. Under the Trump administration's revised interpretation, the MBTA’s protections will apply only to activities that purposefully kill birds. Any “incidental” take—no matter how inevitable or devastating the impact on birds—is now immune from enforcement under the law.

The risk of liability under the MBTA has long provided the oil and gas industry, wind energy development companies, and power transmission line operators with an incentive to work with the U.S. Fish and Wildlife Service to minimize bird deaths. For example, in an effort to protect migratory birds and bats and avoid potential MBTA liability, the wind industry, conservation groups, and the U.S. Fish and Wildlife Service worked to develop comprehensive guidelines aimed to ensure best practices for siting and developing wind farms. The Trump administration’s new policy eliminates this incentive for industries and individuals to minimize and mitigate foreseeable impacts of their activities on migratory birds, putting already-declining populations of our nation’s songbirds and other migratory birds at risk.

The MBTA also protects birds from fossil fuel development. Oil pits kill hundreds of thousands of birds – if incidental take liability is eliminated, industry need no longer take measures to protect birds from these hazards. In addition, when the 2010 BP Deepwater Horizon disaster spilled more than 210 million gallons of oil in the Gulf of Mexico more than 1 million birds were killed in the four years following the blowout. BP paid $100 million-dollars in fines under the MBTA that supported wetland and migratory bird conservation. The new interpretation would bar the federal government from seeking such mitigation under the MBTA for devastating oil spills in the future.

The National Audubon Society, American Bird Conservancy, Center for Biological Diversity and Defenders of Wildlife are being represented in the litigation by the public-interest law firm of Meyer Glitzenstein & Eubanks LLP.

“One of the first conservation laws, the MBTA sparked 100 years of conservation leadership in this country,” said Sarah Greenberger senior vice president of conservation policy for the National Audubon Society. “It defies all facts for the Department of the Interior to suggest that this law is somehow broken when we have a century of evidence that says otherwise.”

Additional quotes from conservation groups:

“The new policy makes it much harder to protect birds from major bird traps—threats like oil pits, wind turbines, and communication towers in bird migration hotspots,” said Mike Parr, President of American Bird Conservancy. “Leaving these threats unattended is like leaving manhole covers off along the sidewalk during rush hour – it’s negligent, irresponsible, and guaranteed to cause harm.”

"The Trump administration's rollback of the Migratory Bird Treaty Act is an absolute disaster for America's birds," said Noah Greenwald, endangered species director at the Center for Biological Diversity. "Many bird species are already declining from habitat destruction and a host of other threats. This rule will allow the death of even more birds, whether they're landing on polluted ponds left uncovered by the oil and gas industry or have their nest trees cut down from underneath them. It's tragic."

“For 100 years, the United States has committed with other nations to protect migratory birds through international treaties and laws. The Trump administration’s meddling with the Migratory Bird Treaty Act threatens to reverse decades of progress to conserve birds that are essential to ecosystems, economies and our enjoyment of nature. On the centennial of this important law, we will do everything we can to protect migratory birds that are defenseless against the reckless actions taken by this administration.” said Jamie Rappaport Clark, CEO and President of Defenders of Wildlife.

“We cannot let Secretary Zinke add one of the oldest and most important laws for birds to his list of anti-environmental giveaways, especially when birds are in critical need of protection. Drastically slashing the reach of the MBTA and removing accountability for preventable bird deaths is unacceptable.” – Katie Umekubo, Natural Resources Defense Council, Senior Attorney, Nature Program.

The National Audubon Society protects birds and the places they need, today and tomorrow. Audubon works throughout the Americas using, science, advocacy, education and on-the-ground conservation. State programs, nature centers, chapters, and partners give Audubon an unparalleled wingspan that reaches millions of people each year to inform, inspire, and unite diverse communities in conservation action. A nonprofit conservation organization since 1905, Audubon believes in a world in which people and wildlife thrive. Learn more how to help at www.audubon.org and follow us on Twitter and Instagram at @audubonsociety.

American Bird Conservancy is dedicated to conserving birds and their habitats throughout the Americas. With an emphasis on achieving results and working in partnership, we take on the greatest problems facing birds today, innovating and building on rapid advancements in science to halt extinctions, protect habitats, eliminate threats and build capacity for bird conservation.

Defenders of Wildlife is dedicated to the protection of all native animals and plants in their natural communities. With over 1.8 million members and activists, Defenders of Wildlife is a leading advocate for innovative solutions to safeguard our wildlife heritage for generations to come. For more information, visit Newsroom.Defenders.org and follow us on Twitter @DefendersNews.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.6 million members and online activists dedicated to the protection of endangered species and wild places. biologicaldiversity.org

The Natural Resources Defense Council (NRDC) is an international nonprofit environmental organization with more than 3 million members and online activists. Since 1970, our lawyers, scientists, and other environmental specialists have worked to protect the world's natural resources, public health, and the environment. Visit us at www.nrdc.org and follow us on Twitter @NRDC.​

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